[Federal Register Volume 77, Number 40 (Wednesday, February 29, 2012)]
[Proposed Rules]
[Pages 12228-12231]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-3916]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R10-RCRA-2011-0973; FRL-9633-8]


Idaho: Proposed Authorization of State Hazardous Waste Management 
Program; Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: Idaho has applied to EPA for final authorization of certain 
changes to its hazardous waste program under the Resource Conservation 
and Recovery Act, as amended (RCRA). RCRA allows EPA to authorize State 
hazardous waste management programs if EPA finds that such programs are 
equivalent to and consistent with the Federal program and provide 
adequate enforcement of compliance. EPA has reviewed Idaho's 
application, has preliminarily determined these changes satisfy all 
requirements needed to qualify for final authorization, and is 
proposing to authorize the State's changes.

DATES: Comments on this proposed rule must be received on or before 
March 30, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
RCRA-2011-0973 by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: [email protected].
     Mail: Nina Kocourek, U.S. EPA, Region 10, 1200 Sixth 
Avenue, Suite 900, Mail Stop AWT-122, Seattle, Washington 98101.
     Hand Delivery: Nina Kocourek, U.S. EPA, Region 10, 1200 
Sixth Avenue, Suite 900, Mail Stop AWT-122, Seattle, Washington 98101. 
Such deliveries are only accepted during the normal business hours of 
operation; special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R10-RCRA-
2011-0973. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the EPA Region 10 Library, 
1200 Sixth Avenue, Suite 900, Seattle, Washington 98101. The EPA Region 
10 Library is open from 9 a.m. to noon, and 1 to 4 p.m. Monday through 
Friday, excluding legal holidays. The EPA Region 10 Library telephone 
number is (206) 553-1289.

FOR FURTHER INFORMATION CONTACT: Nina Kocourek, U.S. EPA, Region 10, 
1200 Sixth Avenue, Suite 900, Mail Stop AWT-122, Seattle, Washington 
98101, email: [email protected], phone number (206) 553-6502.

SUPPLEMENTARY INFORMATION: 

I. Proposed Authorization Revision

A. Why are revisions to State programs necessary?

    States which have received final authorization from EPA under RCRA 
section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste 
program that is equivalent to, consistent with, and no less stringent 
than the Federal program. As the Federal program changes, States must 
change their programs and ask EPA to authorize their changes. Changes 
to State programs may be necessary when Federal or State statutory or 
regulatory authority is modified or when certain other changes occur. 
Most commonly, States must change their programs because of changes to 
EPA's regulations codified in Title 40 of the Code of Federal 
Regulations (CFR) parts 124, 260 through 268, 270, 273, and 279.

B. What decisions have we made in this proposed rule concerning 
authorization?

    EPA has preliminarily determined that Idaho's application to revise 
its authorized program meets all of the statutory and regulatory 
requirements established by RCRA. Therefore, we are proposing to grant 
Idaho final authorization to operate its hazardous

[[Page 12229]]

waste management program with the changes described in the 
authorization application. Idaho will have responsibility for 
permitting Treatment, Storage, and Disposal Facilities (TSDFs) within 
its borders (except in Indian country) and for carrying out the aspects 
of the RCRA program described in its revised program application, 
subject to the limitations of the Hazardous and Solid Waste Amendments 
of 1984 (HSWA). New Federal requirements and prohibitions imposed by 
Federal regulations that EPA promulgates under the authority of HSWA, 
and which are not less stringent than existing requirements, take 
effect in authorized States before the States are authorized for the 
requirements. Thus, EPA will implement those requirements and 
prohibitions in Idaho, including issuing permits, until the State is 
granted authorization to do so.

C. What will be the effect if Idaho is authorized for these changes?

    If Idaho is authorized for these changes, a facility in Idaho 
subject to RCRA will have to comply with the authorized State 
requirements in lieu of the corresponding Federal requirements in order 
to comply with RCRA. Additionally, such persons will have to comply 
with any applicable Federal requirements, such as, for example, HSWA 
regulations issued by EPA for which the State has not received 
authorization, and RCRA requirements that are not supplanted by 
authorized State-issued requirements. Idaho continues to have 
enforcement responsibilities under its State hazardous waste management 
program for violations of this program, but EPA retains its authority 
under RCRA sections 3007, 3008, 3013, and 7003, 42 U.S.C. 6927, 6928, 
6934 and 6973, and any other applicable statutory and regulatory 
provisions, which includes, among others, the authority to:
     Conduct inspections; require monitoring, tests, analyses, 
or reports;
     Enforce RCRA requirements; suspend, terminate, modify or 
revoke permits; and
     Take enforcement actions regardless of whether the State 
has taken its own actions.
    The action to approve these revisions will not impose additional 
requirements on the regulated community because the regulations for 
which Idaho will be authorized are already effective under State law 
and are not changed by the act of authorization.

D. What happens if EPA receives comments on this action?

    If EPA receives comments on this action, we will address those 
comments in a later final rule. You may not have another opportunity to 
comment. If you want to comment on this authorization, you must do so 
at this time.

E. What has Idaho previously been authorized for?

    Idaho initially received final authorization for its hazardous 
waste management program effective April 9, 1990 (55 FR 11015, March 
29, 1990). Subsequently, EPA authorized revisions to the State's 
program effective June 5, 1992 (57 FR 11580, April 6, 1992), August 10, 
1992, 1992 (57 FR 24757, June 11, 1992), June 11, 1995 (60 FR 18549, 
April 12, 1995), January 19, 1999 (63 FR 56086, October 21, 1998), July 
1, 2002 (67 FR 44069, July 1, 2002), March 10, 2004 (69 FR 11322, March 
10, 2004), July 22, 2005 (70 FR 42273, July 22, 2005), February 26, 
2007 (72 FR 8283, February 26, 2007), and December 23, 2008 (73 FR 
78647, December 23, 2008).

F. What changes are we proposing?

    On October 25, 2011, Idaho submitted a program revision application 
requesting authorization for all delegable Federal hazardous waste 
regulations codified as of July 1, 2010. Idaho incorporated the 
delegable Federal regulations by reference in the following provisions 
of the Idaho Administrative Procedures Act (IDAPA): 58.01.05.001 
through 58.01.05.010; 58.01.05.011 with the exception of the 4th 
sentence; 58.01.05.012; 58.01.05.013; 58.01.05.015 through 
58.01.05.018; 58.01.05.356.01; and 58.01.05.998. This authorization 
revision request includes the following Federal rules for which Idaho 
is being authorized for the first time: Exclusion of Oil-Bearing 
Secondary Materials Processed in a Gasification System to Produce 
Synthesis Gas (73 FR 57, January 2, 2008); NESHAP: Final Standards for 
Hazardous Waste Combustors (Phase I Final Replacement Standards and 
Phase II) Amendments (73 FR 18970, April 8, 2008); F019 Exemption for 
Wastewater Treatment Sludges from Auto Manufacturing Zinc Phosphating 
Processes (73 FR 31756, June 4, 2008); Revisions to the Definition of 
Solid Waste (73 FR 64668, October 30, 2008); Academic Laboratories 
Generator Standards, Alternative Standards for Hazardous Waste 
Determination and Accumulation (73 FR 72912, December 1, 2008); 
Expansion of RCRA Comparable Fuel Exclusion (73 FR 77954, December 19, 
2008); OECD Requirements; Export Shipments of Spend Lead-Acid Batteries 
(75 FR 1236, January 8, 2010); Hazardous Waste Technical Corrections 
and Clarifications (75 FR 12989, March 18, 2010); and Withdrawal of the 
Emission Comparable Fuel Exclusion (75 FR 33712, June 15, 2010). EPA 
proposes to revise the state's authorized hazardous waste program in 
its entirety through July 1, 2010. Notice and an opportunity for the 
public to comment on this proposed authorization revision action are 
being provided at this time.

G. Where are the revised state rules different from the Federal rules?

    Under RCRA 3009, EPA may not authorize State rules that are less 
stringent than the Federal program. Any State rules that are less 
stringent do not supplant the Federal regulations. State rules that are 
broader in scope than the Federal program requirements are not 
authorized. State rules that are equivalent to, and State rules that 
are more stringent than, the Federal program may be authorized, in 
which case they are enforceable by EPA. This section discusses certain 
rules where EPA has made the finding that the State program is more 
stringent and will be authorized and discusses certain portions of the 
Federal program that are not delegable to the State because of the 
Federal government's special role in foreign policy matters.
    EPA does not authorize States to administer Federal import and 
export functions in any section of the RCRA hazardous waste 
regulations. Even though States do not receive authorization to 
administer the Federal government's import and export functions, found 
in 40 CFR part 262, subparts E, F and H, State programs are still 
required to adopt the Federal import and export provisions to maintain 
their equivalency with the Federal program. The State amended its 
import and export rules to include the Federal rule on Organization for 
Economic Cooperation and Development (OECD) Requirements; Export 
Shipments of Spend Lead-Acid Batteries (75 FR 1236, January 8, 2010). 
The State's rule is found at IDAPA 58.01.05.006. EPA will continue to 
implement those requirements directly through the RCRA regulations.
    EPA has found that the State's Emergency Notification Requirements, 
(IDAPA 58.01.05.006.02), are more stringent than the Federal program. 
This is because the State's regulations require that the State 
Communications Center be contacted along with the Federal Center. EPA 
has found that the State's statutory requirement requiring

[[Page 12230]]

hazardous waste generators and commercial hazardous waste disposal 
facilities to file annual hazardous waste generation reports, Idaho 
Code Section 39-4411(4) and 39-4411(5), to be more stringent than the 
Federal program. EPA will authorize and enforce these more stringent 
provisions.

H. Who handles permits after the authorization takes effect?

    Idaho will continue to issue permits for all the provisions for 
which it is authorized and administer the permits it issues. If EPA 
issued permits prior to authorizing Idaho for these revisions, these 
permits would continue in force until the effective date of the State's 
issuance or denial of a State hazardous waste permit, at which time EPA 
would modify the existing EPA permit to expire at an earlier date, 
terminate the existing EPA permit for cause, or allow the existing EPA 
permit to otherwise expire by its terms, except for those facilities 
located in Indian Country. EPA will not issue new permits or new 
portions of permits for provisions for which Idaho is authorized after 
the effective date of this authorization. EPA will continue to 
implement and issue permits for HSWA requirements for which Idaho is 
not yet authorized.

I. What is codification and is EPA codifying Idaho's hazardous waste 
program as authorized in this proposed rule?

    Codification is the process of placing the State's statutes and 
regulations that comprise the State's authorized hazardous waste 
management program into the Code of Federal Regulations (CFR). This is 
done by referencing the authorized State rules in 40 CFR part 272. EPA 
is reserving the amendment of 40 CFR part 272, subpart N for this 
authorization of Idaho's program revision until a later date.

J. How would authorizing Idaho for these revisions affect Indian 
country (18 U.S.C. 1151) in Idaho?

    Idaho is not authorized to carry out its hazardous waste program in 
Indian country, as defined in 18 U.S.C. 1151. Indian country includes:
    1. All lands within the exterior boundaries of Indian reservations 
within or abutting the State of Idaho;
    2. Any land held in trust by the U.S. for an Indian tribe; and
    3. Any other land, whether on or off an Indian reservation, that 
qualifies as Indian country.
    Therefore, this action has no effect on Indian country. EPA will 
continue to implement and administer the RCRA program on these lands.

II. Statutory and Executive Order Reviews

    This proposed rule seeks to revise the State of Idaho's authorized 
hazardous waste program pursuant to section 3006 of RCRA and imposes no 
requirements other than those currently imposed by State law. This 
proposed rule complies with applicable executive orders and statutory 
provisions as follows:

1. Executive Order 12866 and 13563

    This action will authorize revisions to the federally approved 
hazardous waste program in Idaho. This type of action is exempt from 
review under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
and Executive Order 13563 (76 FR 3821, January 21, 2011).

2. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b). This proposed rule does not 
establish or modify any information or recordkeeping requirements for 
the regulated community.

3. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 601 et 
seq., generally requires Federal agencies to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions. For purposes of assessing the impacts of 
this proposed rule on small entities, small entity is defined as: (1) A 
small business, as codified in the Small Business Size Regulations at 
13 CFR part 121; (2) a small governmental jurisdiction that is a 
government of a city, county, town, school district or special district 
with a population of less than 50,000; and (3) a small organization 
that is any not-for-profit enterprise which is independently owned and 
operated and is not dominant in its field. EPA has determined that this 
proposed action will not have a significant impact on small entities 
because the proposed rule will only have the effect of authorizing pre-
existing requirements under State law and imposes no additional 
requirements beyond those imposed by State law. After considering the 
economic impacts of this action, I certify that this action will not 
have a significant economic impact on a substantial number of small 
entities.

4. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. This action imposes no new enforceable duty on any State, local 
or tribal governments or the private sector. Therefore this action is 
not subject to the requirements of sections 202 or 205 of the UMRA. 
This action is also not subject to the requirements of section 203 of 
the UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small government entities.

5. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This rule proposes to authorize 
pre-existing State rules in the CFR. Thus, Executive Order 13132 does 
not apply to this action. Although section 6 of Executive Order 13132 
does not apply to this action, EPA did consult with officials of the 
State of Idaho Department of Environmental Quality in developing this 
action. In the spirit of EO 13132 and consistent with EPA policy to 
promote communications between EPA and state and local governments, EPA 
specifically solicits comment on this proposed action from state and 
local officials.

6. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175, because it proposes to authorize pre-existing 
State rules. Thus, EPA has determined that Executive Order 13175 does 
not apply to this rule. EPA specifically solicits comment on this 
proposed action from tribal officials.

7. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory

[[Page 12231]]

actions that concern health or safety risks, such that the analysis 
required under section 5-501 of the EO has the potential to influence 
the regulation. This action is not subject to EO 13045 because it 
proposes to authorize pre-existing State rules.

8. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001), because it is not a ``significant regulatory action'' as 
defined under Executive Order 12866.

9. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus bodies. The NTTAA directs EPA to provide 
Congress, through the OMB, explanations when the Agency decides not to 
use available and applicable voluntary consensus standards. This 
proposed action does not involve technical standards. Therefore EPA is 
not considering the use of any voluntary consensus standards.

10. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629, February 16, 1994) 
establishes Federal executive policy on environmental justice. Its main 
provision directs Federal agencies, to the greatest extent practicable 
and permitted by law, to make environmental justice part of their 
mission by identifying and addressing, as appropriate, 
disproportionately high and adverse human health or environmental 
effects of their programs, policies, and activities on minority 
populations and low-income populations in the United States.
    EPA has determined that this proposed action will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. This action proposes to authorize pre-existing State rules 
which are equivalent to, and no less stringent than, existing Federal 
requirements.

List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous materials transportation, 
Hazardous waste, Indians--lands, Intergovernmental relations, 
Penalties, Reporting and recordkeeping requirements.

    Authority:  This proposed action is issued under the authority 
of sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal 
Act, as amended, 42 U.S.C. 6912(a), 6926, 6974(b).

    Dated: February 13, 2012.
Dennis J. McLerran,
Regional Administrator, EPA Region 10.
[FR Doc. 2012-3916 Filed 2-28-12; 8:45 am]
BILLING CODE 6560-50-P